Thread by @lee_kovarsky

APPELLATE RELIEF IN DOCS CASE

Folks are being a little overly optimistic about Jack Smith’s filing. IMHO there are two things driving that:

(1) A failure to distinguish between a mandamus petition and an ordinary appeal.
(2) Confusion about what could be mandamused.

1/

https://twitter.com/kyledcheney/status/1775370773705687271

Cannon is indulging DJT’s batshittery about the Presidential Records Act (PRA) and might deliver a jury charge predicated on that error. At that point the jury will have been sworn, jeopardy will have attached, and it will be too late to correct the error.

2/

Smith has asked her to declare her intention re the PRA *now* so that he can challenge the underlying batshittery before the ability to challenge is spoiled by the attachment of jeopardy.

3/

Let’s say that Cannon does what Smith wants and adopts an instruction early. *At that point* Smith can clearly try to move the case to the appeals court. But to do so requires what is called a writ of mandamus, rather than an appeal.

4/

The basic difference is that the mandamus issues only on a giant fuck up – or, in more legal phrasing, a clear violation of a ministerial duty. If the Court does adopt the instruction early, I suspect Smith will win the mandamus because DJT's position is just that dumb.

5/

But I don’t think Cannon is going to adopt the instruction early. And if she doesn’t adopt the instruction early, there is no order to challenge with mandamus.

6/

People are instead talking about using mandamus not only to challenge error in an early-adopted instruction, but to force her to adopt something early.

7/

I’m not an expert on instructional practice, but that sounds crazy to me. More relevant, I looked at the cases Jack Smith cites in the brief, and none of them say that. I.e., none say that a judge has to declare her instructions early enough such that she can be mandamused.

8/

So – yes, Cannon *should* tell the parties what instruction she plans to use because it would preserve the rights of the losing party to protect its rights on appeal. But what on earth gives folks the impression that she’ll do that?

9/

And if she doesn’t do it because she thinks she should, people are vastly overestimating the possibility of appellate correction.

/e

@ufmasters It seems like you're just not tracking the issue TBH. Maybe a little premature to be a jerk.